Protecting ALL Public Lands–A Modest Proposal

I know, I know, it’s been a while, but summer is vacation time, even for old retired folks, and so I took one, along with my lovely wife, to the Grand Targhee National Forest in Idaho–the backside of the Grand Tetons, those peaks you generally see only from the front, in Jackson Hole in Wyoming. Yes, it was grand.

I haven’t written much since I got back, but I want to share with you today  an article which will appear in the current issue of Dakota Country Magazine, which should be on the news stands about now. Here goes.

Here’s a wild idea: What if a state with nearly unlimited financial resources decided to do everything it could possibly do to protect the wildlife, and its habitat, on all of its public lands?

The key words there are “everything” and “all.” What if we really could do that? Well, guess what. In North Dakota, we can. Here are my thoughts, collected in my head one day on top a Badlands butte (where I tend to think most clearly), and transcribed to paper as best I can recall.

The two largest landowners—and mineral owners—in North Dakota are the state and federal governments. That means they have tremendous power and influence over how our state’s minerals—read oil and gas, for now—are developed.

The feds own more than a million acres of National Grasslands, most of them in the Bad Lands of western North Dakota. The state owns a couple million acres of “school lands” given to it at statehood, about half of it in the oil producing counties. Both own most of the minerals under their land.

The N.D. Department of Trust Lands manages oil leases on the state lands. The Bureau of Land Management (BLM, often called the “Bureau of Leasing and Mining” by environmentalists out west) manages the minerals for the Forest Service. Between them they control the minerals under about 2.5 million acres of state and federal land in the Oil Patch. (The BLM also manages minerals for the state’s Indian Reservations, another couple million acres.)

Here’s why all of this is important. The Forest Service, from time to time, writes a management plan for the National Grasslands. The most recent plan sets aside about 40,000 acres as roadless areas, technically “suitable for wilderness.” A lot of hunters, hikers, photographers, birders and others who just like the idea of saving a few remaining wild places where cars can’t go, applauded the designation, and an active effort was begun to designate those acres as official Wilderness Areas under the Wilderness Act of 1964. That effort is still underway. I wrote about it here a few months ago.

The acres are in two areas south of Medora, known as the Bullion Butte and Kendley Plateau areas, and two north of Medora, Twin Buttes and the Long X Divide. They are some of the most spectacular and isolated areas of the North Dakota Bad Lands.

Some of those blocks of roadless areas include school sections. Like the Forest Service lands, the school lands are leased to ranchers for grazing. However, because the federal government has not leased their minerals for oil development in those blocks, neither has the state. But then came the Bakken Boom, presenting a huge opportunity for the state to make some money off its lands.

The Trust Lands Department holds quarterly auctions of mineral leases on lands nominated by oil companies who’d like to drill on them. A couple years ago, an oil company nominated a section of state land that was landlocked inside a federal roadless area. It was a section on the west slope of magnificent Bullion Butte, which, outside of our national park, is perhaps North Dakota’s most treasured landmark. Citizen protests, however, scared away the oil company that was proposing to lease the land, and the land was withdrawn from the auction.

In July of this year the Trust Lands people posted on their website another long list of their sections that they were going to auction off in a sale on August 5. Well, several of us (who really need to get a life, I suppose), read those lists, and we found several tracts listed as objectionable, including a couple sections inside the Kendley Plateau non-motorized area, another section on the east slope of Bullion Butte, and one inside a state game management area. The Kendley Plateau and Bullion Butte tracts are both within the boundaries of Wayne Stenehjem’s “Extraordinary Places” list. Mike McEnroe of the Wildlife Society and Jan Swenson of the  Badlands Conservation Alliance met with the Trust Lands staff, and I sent an e-mail questioning whether the Trust Lands people were really sure they wanted to lease those, recalling the bad publicity they received a couple years ago.

Well, it turns out the Game and Fish Department staff reads those lists too, and they were doing their job by also calling those lands to the attention of their fellow state agency, saying preserving the integrity of those lands is important, and it is probably not a good idea to allow oil development on them. They recommended that if the Trust Lands Department insisted on leasing those lands, that they attach a stipulation to the lease that there be “no surface occupancy” on those sections. No wells on those sections. Period. Any drilling would have to come horizontally from outside the sections.

Well, the system worked. Partly because of the Game and Fish recommendation, and partly because of the visit by the two folks from the conservation groups, (and partly, I suppose out of just good common sense), the Trust Lands staff has agreed to “suspend” the lease of those tracts for a year. Good for them. For now.

It was a hard call. Both the staff and the Land Board members believe, as Wayne Stenehjem, who, as Attorney General is a member of the Land Board, told me in an e-mail, that “the Land Board does have a duty to maximize the return on the funds in the Common Schools Trust Fund for the benefit of school students in the state, and that requirement cannot be set aside.”

Well, yes, but . . . The section of the law that directs the Trust Lands Commissioner instructs him to determine the “highest and best use” of school lands when considering a sale, trade or lease of land or minerals. And it says “As used in this section, “highest and best use” means that use of a parcel of land which will most likely produce the greatest benefit to the state and its inhabitants, and which will best meet the needs of the people. In making this determination, the considerations of the commissioner shall include soils capability, vegetation, wildlife use, mineral characteristics, public use, recreational use, commercial or industrial use, aesthetic values, cultural values, surrounding land use, nearness to expanding urban areas, and any other resource, zoning, or planning information relevant to the determination.”

Some of us read that to mean that wildlife use, public use, and recreational use, for example, might just sometimes be the highest and best use of some of those lands—especially those in roadless areas that are suitable for wilderness designation.

Drew Combs, the minerals manager for the Trust Lands Department, told me they are working on a possible minerals swap with the Forest Service, which is a very desirable outcome. Wayne Stenehjem apparently also reads those lists, because he also talked with the Trust Lands staff about them, out of concern for his “Extraordinary Places” policy. Wayne also pointed out in an e-mail to me that “there are tons of hurdles to contend with” in trying to arrange a minerals swap with the Forest Service. (Not the least of which, I might mention, is the lawsuit now making its way through the federal court system that the Attorney General has filed against the Forest Service, seeking to open up the section lines inside those roadless areas so the North Dakota counties can build roads through them. Those are the kind of things that make the Forest Service a little grumbly in its relations with the state. And make the Attorney General look a little hypocritical.)

“We’ll see how that (the mineral swap) goes,” Stenehjem said. Yeah, I guess we will. I just hope the Forest Service can look past the state’s lawsuit over the petty issue of “sovereignty” and work with us on this issue. If a trade for the mineral rights between the state and the Forest Service for mineral rights somewhere else in a non-protected area happens, the environmental integrity of those roadless areas can be maintained.

So, in spite of the unbridled enthusiasm emanating daily from the Governor’s office for drilling every acre in the state, some folks at the staff level in state government are helping to make the system work the way it should. The policy the Land Board put in place, in response to public pressure, of having state agencies review each section of state-owned land before mineral leasing, seems to be working. The state Game and Fish Department has been especially attentive to this (I think maybe Terry Steinwand is getting tired of being called a lackey of the Governor by the conservation community, which he is supposed to be representing in his position as Director).

In the latest review of the lands on the list for the August auction, Game and Fish staffers flagged more than 100 parcels for special attention. The recommendations were detailed and specific.  While some did recommend no surface occupancy, most are as simple as placing wells on the north side of a quarter-section instead of the south side, to avoid critical habitat, or to keep development alongside the roads to avoid fragmenting the habitat any more than it already is. These Game and Fish guys know their job and their wildlife, and are paying serious attention to details, without being unreasonable. This is the biggest test yet of the policy, and I really hope it works, because, getting back to what I mentioned in the first paragraph of this article, it could serve as a model for checks on future development on other public lands.

The Game and Fish Department has a pretty sophisticated method of making its recommendations. In some cases, like on or near Game Management Areas, staff is personally familiar with the land. In others, Steve Dyke, Conservation Supervisor for the Game and Fish Department, said the staff generates recommendations from desktop analysis using things like aerial imagery, the Department’s important habitat maps, spacing units, existing roads/pads and land ownership patterns, among other tools.

I asked the guys at Game and Fish if this could be done on all federal lands as well as state lands, and they said when the BLM schedules its own lease auctions, it is getting recommendations from North Dakota Game and Fish. Dyke told me they “do not yet have a good feel for how they are incorporating our recommendations. Hopefully that will become apparent in the near future.” Dyke also pointed out that most of the federal land is leased already, prior to his department’s involvement, and those leases last ten years.

But even though the oil companies have their leases, they still have to clear one more hurdle—they have to get a drilling permit. And both the state and federal government have something to say about that. And both are aware of the Game and Fish Department recommendations. Now we’ll have to see if the folks who issue drilling permits–Lynn Helms  and his staff at the Oil and Gas Division, which answers to the North Dakota Industrial Commission–are up to the task of looking out for the critters and the land. That hasn’t often been the case in the past.  Somebody needs to hold their feet to the fire.

So what we’re finding, as the Trust Lands Department somewhat grudgingly acquiesces to some restraints on their enthusiasm for maximizing income at the expense of environmental sensitivity (the Department Commissioner responded to our first request, to preserve the integrity of Bullion Butte, with “conservation doesn’t support education for my kids and grandkids”), is that, if we want to, we can indeed support the requests from the oil industry to go after the oil, but in a way that wildlife experts tell us will do the least damage. That being the case, we should see how far we can expand the bounds of that effort.

If the Forest Service and BLM were amenable, for example, and if Game and Fish had adequate resources—two big “ifs,” but both doable—perhaps we could provide some measure of wildlife and habitat protection to ALL public lands in the state. Wouldn’t that be something?